Friday, May 29, 2009

Revisit breath test defenses in California on new subpage of DUI defense attorney Rick Mueller - important update from Minnesota - cases thrown out!

In light of the hanky panky in Minnesota, it's time to revisit California breath test defenses. Below is a sample of the drunk driving breath machine defenses website update found on the San Diego County DUI Law Center home page:

- Failure of California DUI police to do continuous observation of breath test subject for entire 15 minutes before first breath sample. Police allow cessation or interruption in continuity of fifteen minute observation of person tested prior to initial blow sample.

a)Police officer often improperly attempts to include transportation time as part of required 15 minute observation period. San Diego area breath test given within a few minutes of arrival at breath test location.

b) Officer required by law to remain in presence of subject and be able to use all of his/her senses (sight, sound and smell) to properly and logically conduct a true observation during the 15 minutes before test.

c) Observation means a realistic ability to perceive by actually paying attention to subject during the continuous 15 minute period.

d) California DUI officer who purports to observe while driving fails to tilt mirror in order to be able to see subject in backseat or who fails to stay with subject.

e) Patrol car has dispatch radio on, emitting noises and interfering with officer’s ability to hear what subject is doing while in the moving vehicle.

f) DUI officer goes to the trunk upon arrival at breath test location often to put gun away, or walks around before removing subject from police car, or leaves subject alone at anytime during the 15 minutes before blowing - e.g. use of restroom or telephone, or placed in holding cell or area outside presence of the California DUI officer.

- During the important 15 minutes before the San Diego DUI breath test, you have a slight burp, belch or regurgitation of gas.

- Drinking, burping, belching, vomiting or regurgitation of gas within 15 minutes of test, and with no rinsing of mouth, or inadequate deprivation period before the breath test.

What happened in Minnesota is their Supreme Court specifically held that the State of Minnesota is in possession of the source code for the machines and required the State produce the source code to the defendant within 30 days. But the state failed to do so. The court in turn threw out the breath test evidence.

Facing a DUI in Minnesota after a breath test? You probably have a legal defense based on the Supreme Court’s ruling in the
Underdahl
case. It's complicated law, so you may want to to contact a drunk driving defense lawyer who understands what to do there.